Facts Are First Casualty of Health-Care Fight

April 9 (Bloomberg) -- In the Supreme Court’s historic
argument over President Barack Obama’s health-care law, the
Republicans claimed the high ground on principle, Democrats on
the politics.

Both positions are tenuous.

The Republican/conservative case against the
constitutionality of the individual mandate requiring health
insurance belies the fact that it was long championed by those
very elements. It was only when the mandate became part of
Obamacare that it morphed into an unconstitutional federal power
grab.

As for the politics, rarely has a White House so failed to
rally public support behind its signature achievement. Public
opposition to the health bill is unchanged from several years
ago when it was being enacted. One prominent supporter says,
privately, that the White House committed political malpractice
by not explaining to the public that popular provisions in the
bill were linked to the mandate. No one knows this, he says.

For two decades, until the Obama plan took shape, the
individual mandate was a central tenet of Republican health-care
policy. It was the alternative to the government-run single-payer system proposed by the late Senator Ted Kennedy and to the
employer mandate proposed by President Bill Clinton in 1993.

Broccoli Mandate

Take the contention -- now deployed by opponents of the law
-- that if the federal government is allowed to require
Americans to have health insurance, it could also impose other
mandates such as the obligation to buy broccoli. That was
refuted almost a quarter-century ago by the conservative
Heritage Foundation.

“If a young man wrecks his Porsche,” the foundation’s
policy director, Stuart Butler, wrote in 1989, “we may
commiserate but society feels no obligation to repair his car.
But health care is different. If a man is struck down by a heart
attack in the street, Americans will care for him whether or not
he has insurance,” even though “that means more prudent
citizens end up paying the tab.”

The White House and the law’s supporters are armed with
similar ammunition from Republicans, starting with President
George H.W. Bush. During the debate over so-called Hillarycare
in 1993-94, Bob Dole, the Senate Republican leader, and other
party colleagues backed an individual mandate. Subsequently, so
did another Senate Republican majority leader, Bill Frist, a
physician, as well as ex-House Speaker Newt Gingrich.

As governor of Massachusetts, Mitt Romney enacted a mandate
in his state. “Some of my libertarian friends balk at what
looks like an individual mandate,” Romney declared six years
ago. “But remember, someone has to pay for the health care that
must, by law, be provided. Either the individual pays or the
taxpayers pay. A free ride on government is not libertarian.”

Now, as his party’s putative presidential nominee, Romney
says the mandate is only permissible at a state level; at one
time, however, he urged it as a federal measure, with no mention
of constitutionality.

Ironically, Obama was opposed to an individual mandate
during the 2008 campaign, preferring a government-run plan. He
accepted the mandate as a compromise in 2009. Early that year,
Republican senators such as Lindsey Graham and Lamar Alexander
co-sponsored legislation with an individual health-care mandate;
conservative senators such as Charles Grassley and John Thune
expressed ambivalence.

The lawmakers and Heritage say they’ve changed their view
on the issue. That’s not unusual, especially in a complicated
policy area such as health care. Inexplicable, though, is the
claim that something they once supported is not only bad policy
but violates the Constitution. That occurred after it was
embraced by Obama.

Fall Campaign

No matter how the court rules, Team Obama will remind
voters of the Republican inconsistency -- they will tag it
hypocrisy -- in the fall campaign.

Their task would be easier if they had mustered public
support.

During the congressional deliberations, the White House
got too caught up in the inside game. To the public, the debate
seemed about things like the Cornhusker carve-out -- a deal,
subsequently dropped, to get the support of Democratic Senator
Ben Nelson of Nebraska -- or alleged death panels, the absurd
charge by conservatives that the bill would make it easier for
the government to pull the plug on grandma.

Getting 30 million Americans off the uninsured rolls or
stopping the insurance industry’s more egregious discriminatory
practices were lost in the noise.

That was supposed to change after the bill was enacted. It
didn’t for two basic reasons: The White House was under pressure
to focus on the economy and proved inept at multi-messaging, and
officials never settled on a consistent and coherent rationale
for the law.

The public confusion persists. An example: Polls show that
only about one-third of voters support the individual mandate
but more than two-thirds back the provision that prohibits
insurance companies from discriminating against people with pre-existing conditions. There is almost no understanding that these
two provisions are inextricably linked; if the court throws out
the mandate, the pre-existing conditions proviso goes too.

Both the president and the Supreme Court have a lot at
stake. If Obama’s most important first-term achievement is
thrown out, it will be very difficult for him to push any
substantial legislation in his second; that affects his
subsequent standing.

As for the high court, given the record, it’s hard to
believe that if this same bill had been enacted under, say, a
President Romney, it even would be under review. Two
conservative Republican appellate court judges have upheld the
law, and Charles Fried, a law professor at Harvard who was
Ronald Reagan’s solicitor general, says the constitutional
challenge is a “canard” concocted by the political right. A
Bloomberg poll last month found that 75 percent of Americans
thought the court’s decision would be based more on politics
than constitutional merit. A 5-to-4 decision, along partisan
lines, likely would reinforce that perception.

The arguments didn’t help either side. In a Pew Research
survey last week, people whose view was changed by the case said
-- by a three-to-one margin -- that they had a lower opinion of
both the law and the Supreme Court after the oral arguments.

(Albert R. Hunt is the executive editor for Washington at
Bloomberg News. The opinions expressed are his own.)